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PETITIONER: SALIG RAM

       Vs.

RESPONDENT: MUNSHI RAM AND ANOTHER

DATE OF JUDGMENT: 21/03/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B.

CITATION:  1961 AIR 1374            1962 SCR  (1) 470  CITATOR INFO :  R          1966 SC1555  (4)  RF         1991 SC1654  (60)

ACT: Punjab  Customary Law-Customs in Amritsary  district-Adopted son’s right to inheritance in his natural family-Brahmin and Khatri community-Punjab Laws Act, 1872 (Punj. 4 of 1872), s. 5.

HEADNOTE: M,  a  Hindu  belonging  to the  Brahmin  community  in  the Amritsar  District  of  Punjab, instituted a  suit  for  the possession  of  a  half share in the property  left  by  his natural  paternal grandfather.  His father  had  predeceased him,  but another son of his grandfather was alive.  He  had been adopted away in a different family but he claimed  that according to the custom of his community in the district  he was  entitled to get his share in the estate of his  natural grandfather.   The  based  his claim  on  the  principle  of representation  that  he,  stepped into  the  shoes  of  his natural father. Held, that under s. 5 of the Punjab Laws Act, 1872, the  law applicable  to  Hindus  in Punjab in  respect  of  questions regarding  succession and other matters referred to in  that section,  is  Hindu law in the first instance, but  where  a custom different from Hindu law is proved then the rights of the parties would be governed by that custom; and  whosoever asserts a custom at variance with Hindu law has to prove it, though  the  quantum  of proof required in  support  of  the custom  which  is general and well recognised may  be  small while in other cases of what are called special customs  the quantum may be larger. Held,  further,  that  in the Amritsar  district  of  Punjab amongst Brahmins and Khatri s, a son given away in  adoption can  succeed to the property of his natural father if  there is  no  other  son of the natural father, but  if  there  is another son he cannot succeed. Held, also, that in the present case neither under Hindu law nor under the customary law of Punjab could M succeed to the property of his natural grandfather.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 461 of 1957. Appeal  by special leave from the judgment and decree  dated July 5, 1954. of the Punjab High Court in L. P. A. No. 29 of 1953. N.   S. Bindra and Sardar Singh, for the appellant. P.   D. Ahuja and H. P. Wanchoo, for respondent No. 1. 471 1961.  March 21.  The Judgment of the Court was delivered by WANCHOO,  J.-This  is an appeal by special  leave  from  the judgment  of the Punjab High Court and arises out of a  suit for  possession of land brought by Munshi  Ram,  respondent. The following pedigreetable will be useful in  understanding the claim put forward by the respondent:-                Heman Karori            Laghi           Maghi       Jai Dayal                (issueless) Gobind              Ata          Nanak         Chand Santu           Munshi Ram           (adopted son)             plaintiff Hans Raj                Salig Kam                                               ( Defdt.)                MunshiRam             (adopted by Ata) The  claim  of Munshi Ram was with respect to  the  property left by Nanak Chand who is his natural grandfather and  also Santu.  There is no dispute now about the property of  Santu and  we are concerned in this appeal only with the  property of  Nanak  Chand.  Nanak Chand died in 1939.   Munshi  Ram’s natural father Hans Raj had predeceased Nanak Dhand.  Munshi Ram  himself was adopted by Ata in 1918 before the death  of his  natural father Hans Raj which took place in  1920.   It will be clear from these dates therefore that Hans Raj never succeeded  to  the property of his father  Nanak  Chand  and Munshi  Ram had been adopted by Ata even before  Hans  Raj’s death.   The case of Munshi Ram was that he was entitled  to one-half  share of the property left by Nanak Chand  as  his their,  according to Zamindara custom.  The parties, it  may be  Mentioned,  are Brahmins and Munshi  Ram  claimed  joint possession  of the half share of the property left by  Nanak Chand on his 472 death.   The  suit  was resisted by  Salig  Ram  (defendant- appellant)  who is the other son of Nanak Chand.   His  case was  that  Munshi Ram was not entitled either  according  to personal  law or the riwaj-i-am of Amritsar district to  any share in the property left by Nanak Chand.  The trial  court held that Munshi Ram was entitled to succeed to the property left.  by, Nanak Chand along with Salig Ram and decreed  the suit  accordingly Salig Ram went in appeal to  the  District Judge but failed.  He then went in second appeal to the High Court  but  the second appeal was also  dismissed  The  High Court  having refused to grant a certificate  the  appellant applied  to this Court for special leave which was  granted; and that is how the matter has come up before us. In questions regarding succession and certain other matters, the  law  in the Punjab is contained in s. 5 of  the  Punjab Laws  Act,  No.  IV of 1872.  Clause  (b)  of  that  section provides that the rule of decision in such matters shall  be the Hindu law where the parties are Hindus, except in so far as  such  law has been altered or abolished  by  legislative enactment,  or is opposed to the provisions of this  Act  or has  been modified by any such custom as is referred  to  in cl.  (a)  thereof.   Clause (a)  provides  that  any  custom

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applicable  to the parties concerned, which is not  contrary to  Justice, equity or good conscience, and has not been  by this or any other enactment altered or abolished and has not been declared to be void by any competent authority shall be applied  in  such  matters.   The  position  therefore  that emerges  is,  where the parties are Hindus,  the  Hindu  law would  apply in the first instance and whosoever  asserts  a custom  at variance with the Hindu law shall have  to  prove it,  though the quantum of proof required in support of  the custom  which  is general and well recognised may  be  small while in other cases of what are called special customs  the quantum may be larger.  As was pointed out by Robertson, J., as  far back as 1906 in Daya Ram v. Sohel Singh  and  others (1),  "in  all cases under s. 5 of the Punjab Laws  Act,  it lies upon the person asserting that he is ruled (1)  1906 P. R. No. 110.                             473 in regard to a particular matter by custom, to prove that he is  so  governed, and not by personal law,  and  further  to prove   what  the  particular  custom  is.   There   is   no presumption  created by the clause in favour of  custom;  on the contrary it is only when the custom is established  that it  is to be the rule of decision." These observations  were approved by the Privy Council in Abdul Hussein Khan v.  Bibi Sona Dero and another (1).  The same view has been taken  by this Court in Ujagar Singh v. Mst.  Jeo (2). We  have therefore in the first instance to apply Hindu  law to  the parties to this suit, and it is only when  a  custom different  from  Hindu  law is proved  that  rights  of  the parties would be governed by that custom.  Munshi Ram’s case was that he was adopted by Ata according to custom (i.e., in accordance  with  the mode prevalent in  the  community  for purposes of adoption) during the lifetime of Hans Raj.  Thus Munshi  Ram having been adopted by Ata would have  no  right left  in the family of his natural father Hans  Raj,  unless the adoption was in the dvyamushyayana form.  It was however never  the  case  of Munshi Ram that  the  adoption  was  in dvyamushyayana form and so far as Hindu law is concerned, if it  applies to this case Munfshi Ram would not  be  entitled after the adoption to succeed to the property left by  Nanak Chand. But Munshi Ram’s case was that according to Zamindara custom he was entitled to succeed to half of the properties left by Nanak  Chand.   The  question  therefore  arises:  what  the Zamindara custom is in the present case.  In the plaint  the custom  was not actually pleaded, though  strictly  speaking this  should  have been done.  However, the custom  that  is relied  upon  is to be found in para. 48 of  the  Digest  of Customary  Law  in the Punjab by Rattigan at  p.  572,  13th Edition.   This paragraph appears in section V dealing  with "Effect  of Adoption on Succession" and is in the  following terms:-               "An   heir  appointed  in  the  manner   above               described ordinarily does not thereby lose his               right to succeed (1)  (1917) L. R. 45 I. A. 10, 13.  (2) [1959] SUPP. 2  S.C. R. 781 60 474               to property in his natural family, as  against               collaterals,  but  does  not  succeed  in  the               presence of his natural brothers." It  is not disputed before ,is that para. 48 applies in  the case  of adoption also; but what is contended on  behalf  of the  appellant  is  that para. 48  only  mentions  a  custom

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prevalent  throughout  the Punjab while  the  riwaj-i-am  of Amritsar  district  from which area the  parties  come  also records a custom confined to that area which really  governs the  parties.   It appears that in 1865  the  riwaj-i-am  of Amritsar district stated that "an adopted son will not be  a co-sharer amongst his brothers, in the property left by  his natural father", i.e., a son given away in adoption will not inherit  in  the natural father’s family.  We  may  in  this connection  refer to Jai Kaur and others v. Sher  Singh  and others (1), where this Court held that-               "there is therefore an initial presumption  of               correctness  as  regards the  entries  in  the               Riwaj-i-am and when the custom as recorded  in               the Riwaj-i-am is in conflict with the general               custom  as  recorded in Rattigan’s  Digest  or               ascertained  otherwise,  the  entries  in  the               Riwaj-i-am  should ordinarily  prevail  except               that  as  was  pointed  out  by  the  Judicial               Committee  of the, Privy Council in  a  recent               decision  in Mt.  Subhani v. Nawab  (2),  that               where, a,% in the present case, the Riwaj-i-am               affects  adversely the rights of  females  who               had  no  opportunity  whatever  of   appearing               before    the   revenue    authorities,    the               presumption  would  be weak, and  only  a  few               instances would suffice to rebut it." As  females are not concerned in this case, the  entries  in the  riwaj-i-am  of  Amritsar  district  in  1865,  if  they conflict  with  para.  48  of  Rattigan’s  Digest,,   should prevail.   On  that view Munshi Ram would have no  right  to succeed  in  the family of his natural father after  he  was adopted  by Ata.  The High Court, however, pointed out  that there  were  decisions of courts which did  not  accept  the riwaj-i-am  of Amritsar district of 1865 as laying down  the correct  custom  and  therefore para. 48 of  the  Digest  by Rattigan would still prevail. (1) A.I. R. 1960 S.C. 1118. (2) A.I.R. 1941 P.C. 21. 475 In this connection the High Court relied on Majja Singh  and others  v. Rain Singh (1).  That was however a case of  Jats and  not of Brahmins and the person who was adopted in  that case  was  an  only  son.  That  case  would  not  therefore necessarily  override  the custom so far as  it  applies  to Brahmins.   In  any case the position is made clear  by  the Manual  of Customary Law prepared in 1911-12 by  Mr.  Cralk. The  custom  recorded in that compilation is that  with  the exception  of Brahmins and Khatris, an adopted son does  not retain his right to inherit from his natural father, even if the  latter  dies without leaving any other son.   The  High Court  however pointed out that the Brahmin,,;  and  khatris did  not  accept  this custom; but it  failed  to  notice  a further  paragraph in answer to that very question where  it was  pointed  out that among Brahmins and Khatris  the  same custom  prevailed except that where there was no other  son, the  son who was adopted in another family would succeed  to the  property of his natural father.  In 1940 the  customary law  of Amritsar district was again compiled and the  custom recorded  is that an adopted son loses his right to  inherit from his natural father but if the latter dies without other sons the adopted son cannot inherit as a son but may inherit collaterally as a successor of his adoptive father. The position as it emerges from a comparison of the  entries in  the  riwaj-i-am of 1865, 1911-12 and  1940  is  somewhat confused  and  the  High Court therefore  thought  that  the

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custom recorded in para. 48 should be adhered to as Brahmins and  Khatris did not accept the extreme position that as  on given   away  in  adoption  was  excluded  altogether   from succeeding  in  his natural father’s family as  recorded  in 1911,12.   This  conclusion  seems to be  fortified  by  the statements  of  Brahmins and Khatris in 1911-12 that  a  son given  away  in  adoption succeeded in  the  family  of  his natural  father if he had no brothers-though the High  Court did not notice this part of the answer in the riwaj-i-am  of 1911-12.   The  conclusion therefore at which we  arrive  is that amongst Brahmins and (1)  1879 P.R. No. 43- 476 Khatris  of Amritsar district, a son given away in  adoption can  succeed to the property of his natural father  only  if there  is  no other son of the natural father; if  there  is another son he cannot succeed. Now let us see how this proposition works out in the present case.   In this case Munshi Ram was claiming to succeed  not to the property of Hans Raj, his natural father, but, to the property  of  Nanak Chand his natural grandfather.   If  the case  was  for  succession to the property  of  the  natural father,  namely,  Hans Raj, the custom might  have  favoured Munshi  Ram,  for Hans Raj had no other son and  Munshi  Ram would thus have succeeded to the property of Hans Raj.   But Hans  Raj, having died in the lifetime of his father  (Nanak Chand), never succeeded to the property of his father.   The High  Court,  however,  thought that  on  the  principle  of representation Munshi Ram stepped into the shoes of Hans Raj and therefore was entitled to succeed to the estate left  by Nanak  Chand  as his father would have succeeded if  he  had been alive at the time of the death of Nanak Chand.  But  if Munshi Ram is to succeed by the application of the principle of  representation  it would follow that  Munshi  Ram  would really be deemed to be Hans Raj at the time of the death  of Nanak Chand.  In that case the position would be that  Nanak Chand  would have died leaving two sons, namely,  Salig  Ram and  Munshi  Ram in the guise of Hans Raj.  But  Munshi  Ram having  been  adopted away and there being  another  son  of Nanak  Chand,  even the custom recorded in  para.  48  would exclude Munshi Ram because then there would be a brother  of Munshi  Ram  alive  in the family of Nanak  Chand  and  this brother  would succeed in exclusion of Munshi tam who  would be  representing  his  father.  The argument  on  behalf  of Munshi Ram is that though for the purpose of  representation Munshi  Ram would be treated as if he stood in the shoes  of his  father, the representation could not go further and  it could  ’not be held that there were two sons of Nanak  Chand living it the time of his death, one of whom in the guise of Munshi Ram was adopted away.  We cannot accept this                             477 argument;  and if Munshi Ram is to succeed on the  principle of  representation that principle must be fully  worked  out and  he  must for all intents and purposes be deemed  to  be Hans  Raj.  As the person who is deemed to be Hans  Raj  was adopted away and has a brother in the shape of Salig Ram  he would not succeed even under the custom recorded in para. 48 of  Rattigan’s  Digest.   The  position  therefore  is  that neither  under  Hindu law nor under the custom  recorded  in para.  48  can Munshi Ram succeed to the property  of  Nanak Chand.   We  therefore allow the appeal and  set  aside  the decree  of  the  courts below and dismiss the  suit  of  the plaintiff-respondent  so far as the property of Nanak  Chand is  concerned.   In  the circumstances  we  also  order  the parties to bear their own costs throughout as the High Court

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did.                 Appeal allowed.